The Players: Judge Mustafa Kasubhai of the Lane County Circuit Court Judge. Opinion by Presiding Judge Ortega of the Oregon Court of Appeals. George Kelly, Eugene appellate lawyer.

Result: Affirmed (Judge Kasubhai got it right)

Issues: Did the trial court err by determining that petitioner experienced “reasonable apprehension” regarding her personal safety when he snuck up behind her and also peered in bathroom window.

Issue 2: Did trial court err by denying him right to cross-examine a witness and by refusing him to call two of his witnesses.

Standard of Review: Errors of law and review of record for “any evidence” to support trial court’s factual findings. Control of the proceedings review is done by abuse of discretion.

Facts: Respondent is a horse trainer in Creswell, Oregon, who owns a horse arena. Petitioner and her husband owned rescue horses and rented the house on the property from the respondent and respondent lived in an RV on the property. They shared access to horse arena. The neighbor and landlord-tenant relationship soured and petitioner got an SPO (Stalking Protective Order) against respondent and respondent against petitioner’s husband. Mighty neighborly.

At trial, both parties were pro se and reported three witnesses each.

1st Unwanted Contact: Respondent snuck up behind her in the horse arena and pushed himself against her and said she needed to “relieve some tension” and started massaging her shoulders. She left bawling and told her husband that they were moving out.

2nd Unwanted Contact: Four months later, she saw him peering in the window while she took a bath. Husband chased him halfway down to his trailer.

Holding 1: Subjective and Objective Alarm: Apprehension of physical injury from sexual assault was reasonable. Not merely unsettling, unusual or unpleasant. The bathroom incident was actually threatening. Since he was the landlord, his contacts were particularly troubling, especially in light of their apparent sexual nature. He was aware that his physical contact caused her to want to move but he engaged in further contact anyway.

Elements or Requirements of a Stalking Order Statute (not the same as a Multnomah County or Clackamas County Oregon restraining orders):

Two or more unwanted contacts within the previous two years.

Petitioner was subjectively alarmed or coerced by each contact.

Alarm or coercion was objectively reasonable for person in victim’s situation.

Alarm means to cause fear or apprehension resulting from perception of danger.

Danger means a threat of physical injury and not merely a threat of annoyance or harassment.

Cumulative contacts must give rise to subjective apprehension regarding personal safety and that apprehension is objectively reasonable. Reasonableness is determined by all circumstances of parties relationship.

Holding 2: The trial court’s management of the proceedings gives discretion to prevent cross-examination and to prevent witnesses from being called. Judge can prevent evidence and cross if evidence would be irrelevant or redundant. OEC 403 allows the court to weight the probative value versus considerations of undue delay or needless presentation of cumulative evidence.

Commentary: The trial lawyer should adequately raise the due process grounds that require cross-examination and witnesses being called. Practice tip: Always make a constitutional argument when possible. Also, error unpreserved because he did not ask to cross the witness. Always do an offer or proof when you are prevented from presenting evidence so the court of appeals knows what the evidence would have shown.

Appellate tip: Ask the court of appeals to use its discretion for de novo review.